Bradenton Herald, by Mary Ellen Klas, Herald/Times Tallahassee Bureau
March 7, 2017
A bill that attempts to flush out serial abusers of Florida’s public records law was tightened Monday to appeal to Sunshine Law advocates, but the groups said the changes don’t go far enough to protect the public.
The bill, SB 80 by Sen. Greg Steube, R-Sarasota, would give judges more discretion in deciding whether or not to award attorneys fees in public-records lawsuits.
“What’ I’m trying to do here is reach some kind of compromise,” he said.
Florida law allows for citizens to be awarded attorney fees to encourage people to pursue their right to access government records and prevent public agencies from violating the public records laws. The bill would remove the requirement that the legal fees be paid by agencies by changing the requirement that judges “shall” award attorneys fees to “may award the fees.”
The Senate Community Affairs Committee adopted an amendment proposed by Steube to require attorneys fees only if a complainant can show by a preponderance of evidence that “an agency willfully or intentionally violated the public records act.” If the complainant cannot show that, then the judge would have the discretion to award the fees.
But open-government watchdogs and First Amendment advocates say that even with the changes, the proposal will still have a chilling effect on people who face obstacles to their efforts to get access to public records.
“This is a right in Florida. It’s not a privilege,” said Barbara Petersen, president of the Florida First Amendment Foundation which advocates for the state’s open records and open meetings laws.Because Florida law has no enforcement provision for the constitutional right to public records, “the mandatory fee provision is the only leverage a citizen has,” she said.
Despite the objections, the Senate Community Affairs Committee voted 6-1 to approve the measure, with Steube’s modifications.
This is the second year in a row that Steube has proposed the measure, which is a top priority of the League of Cities and the Florida Association of Counties.
Local officials claim that a small number of individuals are attempting to use the law to make money by filing complex “gotcha” public records requests with low-ranking government officials and then when they fail to properly respond suing them in court. The goal, local officials say, is to provoke governments into settling cases before they go to trial.
Florida’s Constitution requires that the public has a right to access public documents, but Chapter 119 of the Florida Public Records Act gives individuals the ability to enforce that right only by filing a lawsuit against an agency.
Florida law allows for citizens to be awarded attorney fees to encourage people to pursue their right to access government records and prevent public agencies from violating the public records laws. But Steube’s bill would remove the requirement that the legal fees be paid by agencies by changing the requirement that judges “shall” award attorneys fees to “may award the fees.”
Rich Templin of the AFL-CIO, which has joined the Sunshine Coalition, a group of pro-recorads advocates, said Steube’s proposed fix still goes too far and won’t curb the abuse.
“The abuse of this process has not been driven by attorneys,” he said. “It’s been driven by folks who have figured out a scam to work the system and basically extort agencies.”
Petersen said that the abuses are being addressed by judges and the legal community and the number of abusers has declined.
“Courts are addressing the issue when they find there is an attempt to shake down the agency or a contractor,” she said. “Media attorneys are now volunteering to represent those who are being targeted — so we’re taking this seriously.”
She said the First Amendment Foundation (of which the Miami Herald and Tampa Bay Times are members) last year helped to craft a compromise with the League of Cities that would require that the judge “shall” award attorneys fees and court costs to a plaintiff if the judge determines that the public agency violated the law and if the person making the request gave five days notice before filing the lawsuit.
To appease the cities, the compromise also gave the judge discretion to not award attorney fees if the court determines that the primary purpose of the public records request was to harass the agency or trick officials into violating the public records law.
But Steube, who filed the House bill last year, never signed off on the compromise and returned this year with his original bill.
“What I’m trying to do is thread the needle on abuses,” he said.
Meanwhile, Petersen has announced that this year the First Amendment Foundation will grade legislators on their votes regarding the state’s Sunshine laws.
As they do that, however, Rebecca O’Hara, lobbyist for the League of Cities, said her organization is working on rolling back the state’s public meetings law to make it easier for elected officials to avoid violations.
Under the proposal being considered, elected officials would be allowed “to engage in a fact-finding inquiry,” outside of the public — activities which are already allowed through case law, she said.
“We’ve recognized that the public meeting law, in addition to all the benefits it brings to transparency in government, it does at the same time bring about some inefficiencies as well,” she said. “….We would be supportive of some way to still allow the transparency that you get with the open meetings law but still look at some circumstances that would make it a little bit more efficient.” [READ MORE]